FILED

March 08, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

LARRY S. GOUGE and wife, ) C/A NO. 03A01-9805-CV-00174

CAROL J. GOUGE, )

) SULLIVAN CIRCUIT

Plaintiffs-Appellants, ) 

) HON. JOHN MCLELLAN, III,

v. ) JUDGE

)

FRED B. RYAN, ET AL., and ) AFFIRMED

FRED B. RYAN, ) AND

) REMANDED

Defendants, )

)

and TENNESSEE FARMERS MUTUAL)

INSURANCE COMPANY, )

)

Defendant-Appellee. )

_________________________________ )

)

MISTY A. GOUGE, a minor child, by )

her parents and natural guardians, )

LARRY S. GOUGE and CAROL J. )

GOUGE, )

)

Plaintiff-Appellant, )

)

v. )

)

FRED B. RYAN, ET AL., and FRED )

B. RYAN, )

)

Defendants, )

)

and TENNESSEE FARMERS MUTUAL)

INSURANCE COMPANY, )

)

Defendant-Appellee. )

SHELTON B. HILLMAN, JR., GORE & HILLMAN, Bristol, for PlaintiffsAppellants.

STEVEN C. ROSE, WEST & ROSE, Kingsport, for Defendant-Appellee.

O P I N I O N

Franks, J.
2

The dispositive issue on this appeal is well stated by the appellant:

“Does the wording of the subject policy of insurance expand ‘bodily injury to a

person’ to include derivative claims.”

This case arises from an automobile accident that occurred on March 9,

1996. Misty Gouge, a minor, was injured in the accident, and her parents Larry and

Carol Gouge sought damages for Misty’s medical expenses, as well as derivative

claims for medical expenses and loss of services.

Anticipating a deficit in the amount of the defendant’s insurance

coverage, the Gouges also sought to recover from their underinsured carrier,

Tenness ee Farme rs Mutua l Insurance company. This policy provided split limits

coverage with $100,000.00/$300,000.00 policy limits. Tennessee Farmers Mutual

moved for partial summary judgment, claiming that the policy’s $100,000.00 “per

person” limit applied to all of the Gouge’s claims. The Trial Judge granted the motion

and later amended the previous order to constitute a final judgment, pursuant to

T.R.C.P. Rule 54.02.

The insurance policy at issue contains the following relevant sections:

Bodily injury means injury to a person and the sickness, disease or

death of that person resulting from that injury. Bodily injury sustained

by any one person includes all injury and damages to others, including

but not limited to, the loss of services and loss of consortium resulting

from that bodily injury.

Limited of Liability . . . The maximum limit for “each person” includes

damages claimed by the injured person for medical expenses, loss of

services and loss of consortium. The maximum limit of liability for

“each person” also includes all damages claimed by others, such as

damages for medical expenses, loss of services and loss of consortium,

resulting from the bodily injury sustained by the injured person.

The parties dispute the meaning of the foregoing language. Appellants

content that they each, in addition to their daughter, are entitled to up to $100,000.00

each in coverage. The appellee argues that the $100,000.00 limit applies to both

Misty’s injuries and the appellants’ claims.
3

“Contracts of insurance, like other contracts, are to be construed

according to the sense and meaning of the terms which the parties have used, and if

they are clear and unambiguous, their te rms are to be taken and understood in their

plain, ordinary, and popular sense.” Guardian Life Ins. Co. Of America v.

Richardson, 129 S.W.2d 1107, 1115 (Tenn. App. 1939). Thus, where there is no

ambiguity, “it is the duty of the Court to apply to the words used their ordinary

meaning and neither party is to be favored in their construction.” Brown v. Tennessee

Auto. Ins. Co., 237 S.W.2d 553, 554 (Tenn. 1951). A contract is ambiguous “when it

is of uncertain meaning and may fairly be understood in more ways than one.” 

Empress Health and Beauty Spa Inc., v. Turner, 503 S.W.2d 188, 190-191 (Tenn.

1973). “A strained construction may not be placed on the language used to find

ambiguity where none exists.” Id. at 191.

In this case, the contract is not ambiguous. It states that damages

“claimed by others,” including loss of services, are subject to the same limitation as

the damages “sustained by the injured person.” Thus, the policy includes within the

limit of cove rage for ea ch person claims for loss of service s arising from bodily

injuries to one person. Since all the claims in this case derive from Misty’s injuries,

they are subject to a single limit of $100,000.00. The Trial Court properly construed

the contract. Moreover, other Tennessee cases have reached similar conclusions,

albeit under somewhat differently worded contracts. See e.g., Yancy v. Utilities Ins.

Co., 137 S.W.2d 318 (Tenn. App. 1939); Maryland Cas. Co. v. Gordon, 371 S.W.2d

460 (Tenn. App. 1963).

Appellants cite Tate v. Allstate Ins. Co., 692 So. 2d 822 (Ala. 1997) to

support their position tha t each of the claims is subject to a separate $100,000.00 limit. 

While Tate is instructive, the policy in that case contained different language from the

contract at issue. First, the contract in this case specifically states that “bodily injury
1

The insurance policy under consideration by the Tate Court provided:

The limits [$100,000.00 per person, $300,000.00 per occurrence] are the maximum

we will pay for any single auto accident. The limit stated for each person for bodily

injury applies to all damages arising from bodily injury, sickness, disease, or death

sustained by one person in any one occurrence. The occurrence limit is our total

limit of liability for all legal damages for bodily injuries sustained by two or more

persons in any one occurrence.

That policy further provided:

Allstate will pay for all damages a person insured is legally obligated to pay because

of bodily injury or property damage, meaning:

1. Bodily injuries, sickness, disease or death to any person, including loss of

services; and

2. Damages to, or destruction of property, including loss of use.

The Alabama Court construed the policy to provide separate coverage for “bodily

injury” where the only injury was “loss of consortium”, i.e., “loss of services” was held to be

a “bodily injury”. 

4

sustained by any one person includes all injury and damage to others.” Second, the

policy defines it per person limit of liability to include “all damages claimed by others,

such as . . . loss of services . . . resulting from bodily injury sustained by the injured

person.” Thus, Tate is distinguishable.1 The Trial Court properly granted summary

judgment. 

The cost of the appeal is assessed to appellants, and the cause remanded.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.